Before the late spring of 2012, I hadn’t heard much (and certainly didn’t know much) about the Higgs boson. In late June 2012, however, lead counsel in a US lawsuit took me to Geneva Switzerland so that we could meet with a scientist at CERN, the European nuclear center.
So, at the gift store—yes CERN has a gift store—I bought a small booklet explaining particle physics for the layman, and started watching the news about the Higgs boson, which was formally announced as “discovered” or “found” or “confirmed” (probably the best term) shortly after our visit. Lead counsel made a much better purchase: a hard hat with the CERN logo.
So what does CERN have to do with patent searching or Casablanca? Well, you don’t actually “find” a Higgs boson. Instead, you look for events that a supercollider would create if a Higgs boson existed. One such event, or a few such events, or even many such events could, however, represent accidental results (or observations) that were caused by something other than a Higgs boson. In such cases, perhaps you didn’t actually find a Higgs boson.
So, physicists at CERN and around the world (it turns out that every college or university physicist now living helped find the Higgs boson; just read your alumni magazine) demanded a form of statistical proof that the observed events were caused by the Higgs boson. Now, as the philosophy majors would tell us, proving the absence of something is logically impossible. Thus, the next best thing to such impossible proof takes the form of a “five Sigma” statistical determination. Stated simply, the goal is to observe so many events that resemble a Higgs Boson that the possibility that these events are accidental, random, or something other than a Higgs boson, is almost nonexistent.
This concept—conducting a search until you believe that the possibility of a different result is very low—represents the logic of patent searching; you are looking to eliminate the possibility that identical (or near-identical) prior art exists. (Less similar prior art gets us into the topic of obviousness or inventive step, which is a subjective legal determination rather than searching issue).
Is Casablanca going to be here somewhere? Yes. At the front end of a project, a patent search is carried out at a proportional cost in the places (databases, etc.) in which troublesome information would normally be found. In the words of Captain Renault, “Round up the usual suspects!”
If such a proportional search fails to identify any conflicting information, it’s probably worthwhile to start the patent application. I try to remind clients, however, that the search for prior art, like the search for the Higgs boson, can theoretically go on forever.